Ketchum and Monsell (Child support)

[2021] AATA 1274

Ketchum and Monsell (Child support) [2021] AATA 1274 (9 March 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2020/SC020159

APPLICANT:  Ms Ketchum

OTHER PARTIES:  Child Support Registrar

Mr Monsell

TRIBUNAL:Member C Breheny

DECISION DATE:  09 March 2021

DECISION:

The decision under review is varied so that Ms Ketchum has 50% and Mr Monsell has 50% care of [Child 1] from 20 December 2019, as notified on 16 April 2020.

CATCHWORDS

CHILD SUPPORT – percentage of care – determination of whether care exists for older child living out of the home – care percentages varied – decision under review varied

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been omitted from this decision and replaced with generic information so as not to identify involved individuals as required by subsections 16(2AB)-16(2AC) of the Child Support (Registration and Collection) Act 1988.

REASONS FOR DECISION

BACKGROUND

1. Ms Ketchum and Mr Monsell are the separated parents of [Child 1], born February 2007. There is another child, [Child 2], not subject to this review. A child support case has been registered with the (then) Department of Human Services – Child Support (Child Support) since 19 April 2017, and child support has been payable on the basis that Ms Ketchum had 72% care and Mr Monsell had 28% care of [Child 1]. Mr Monsell is liable to pay child support to Ms Ketchum.

2. On 16 April 2020 Mr Monsell contacted Child Support and advised that he had 100% care of [Child 1] since 5 October 2019. Ms Ketchum stated that [Child 1] is “couch surfing”, mostly staying with friends and family and neither parent had care of [Child 1]. On 27 July 2020 a decision was made that Mr Monsell had 42% care and Ms Ketchum had 0% care of [Child 1] from 20 December 2019.

3. On 7 August 2020, Ms Ketchum objected to the decision, stating that [Child 1] was living with friends and family, not with Mr Monsell and neither parent had care. On 21 October 2020, a Child Support objections officer decided to disallow the objection, indicating that there was not enough evidence to change the initial care determination.

4. On 2 November 2020, Ms Ketchum applied to the Social Services and Child Support Division of the Administrative Appeals Tribunal for an independent review of the objection decision. The application was heard on 9 March 2021. Ms Ketchum and Mr Monsell attended the hearing by conference telephone and gave evidence on affirmation. A representative of the Child Support Registrar did not attend the hearing. I had before me the Statement and Documents provided by Child Support pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, received on 2 December 2020 (documents numbered 1–290). I also considered additional information provided by Ms Ketchum (marked A1) and Mr Monsell (marked B1–B41).

ISSUES AND CONSIDERATION

1. The relevant legislation is the Child Support (Assessment) Act 1989 (the Act) and the Child Support (Registration and Collection) Act 1988.

2. Sections 49 and 50 of the Act provide that a care determination must be made following an application for a child support assessment and requires consideration of the actual, or likely, pattern of care that the parents will have in relation to the children in a particular care period.

3. In this case, Child Support records indicate that since 4 March 2019, child support liability had been calculated on the basis that Ms Ketchum had 72% care and Mr Monsell had 28% care of [Child 1] (folio 260). Records also show that Mr Monsell contacted Child Support on 16 April 2020 to advise that [Child 1] had come into his care well before Christmas and not been in Ms Ketchum’s care since 5 October 2019 (folio 68).

4. Child Support records further show that Ms Ketchum stated on 15 May 2020 that [Child 1] had left her care in late December 2019, not October 2019, as she took him on a cruise from 12 December 2019 to 20 December 2019 (folio 97). The file note dated 15 May 2020 states that Ms Ketchum told Child Support that [Child 1] “has gone to stay with his father, but only three nights a week” and “[Child 1] spends the rest of the time at his grandmother’s house or with friends” (folio 90).

5. The issue for me to determine is whether a care change occurred, as notified by Mr Monsell on 16 April 2020, on or about 20 December 2019.

Ms Ketchum’s evidence

1. Ms Ketchum provided extensive diary entries (folios 147-178 and folios 224-235) covering the period 1 October 2019 to 2 August 2020. Her entries indicate that [Child 1] stays most of the time with friends and family (auntie, grandmother) and stays only occasionally at Mr Monsell’s home. Ms Ketchum acknowledged that [Child 1] was no longer staying at her home, but she knew where he was because she spoke with him regularly.

2. Ms Ketchum did not understand why Child Support determined that Mr Monsell had 42% care of [Child 1]. She denied that she ever told Child Support that [Child 1] was living with Mr Monsell three nights per week.

3. Ms Ketchum agreed that she was still financially and emotionally supporting [Child 1]. She would liaise with the school (to try and get [Child 1] to return to school) and the courts. She was the emergency contact for any issues at school and third parties would contact her, if there was an issue in relation to [Child 1].

4. Ms Ketchum provided a court order dated [in] August 2020 (folios 214-215) which stipulated that “the children shall live with the Mother” and “the children shall spend no time with the father”, but she acknowledged that [Child 1] was ignoring the court order.

5. Ms Ketchum agreed that both she and Mr Monsell supported [Child 1].

Mr Monsell’s evidence

1. Mr Monsell said that he was currently supporting [Child 1] in a court case. Mr Monsell agreed that [Child 1] was staying with him on occasion and also staying with family and friends.

2. Mr Monsell stated that he would always support [Child 1], financially, emotionally or when he needed a place to stay. He did not think that a decision should be made that neither parent had care of [Child 1]. Mr Monsell said that this would send a “bad message to [Child 1]”.

3. Mr Monsell suggested that both he and Ms Ketchum provide “equal care” for [Child 1], each parent in their own way and that this should be reflected in the child support assessment.

Other evidence

1. Ms Ketchum provided a letter from [Ms A], dated 16 April 2020 (folio 72). [Ms A] notes:

   I am writing to confirm that the eldest child, [Child 1], does not stay anywhere consistent. He stays at different houses all the time, including his nan’s, dad’s, friend’s and auntie’s….

   [Ms Ketchum] has attended meetings with the school and attended court in regard to [Child 1] not attending school. [Ms Ketchum] is the parent who has made contact with services to get help with [Child 1].

2. Mr Monsell provide a letter from [Ms B], dated 7 March 2021 (folio B3). [Ms B] writes:

   In the last two year I have seen [Child 1] with [Mr Monsell] numerous times, at his house and in his care.

   I have spoken to them together numerous times and it was obvious to me that they spend a lot of time together…I believe [Mr Monsell] does his best to provide [Child 1] with everything he needs.

Conclusion

1. Care is generally calculated over a “care period”, which is a period that the Registrar or the Tribunal considers to be appropriate having regard to all the circumstances of the matter (section 50 of the Act). Child Support’s policy in this regard, as set out in Chapter 2.2.1 of the Child Support Guide, is that a care period is generally a 12-month period from the day on which the actual care for a child changed, but it may be a shorter period depending on the circumstances of the case.

2. In this case Mr Monsell notified Child Support on 16 April 2020 that [Child 1] had not been living with his mother since 5 October 2019. Ms Ketchum provided evidence that she had taken [Child 1] on a cruise in December 2019 and agreed that [Child 1] had not been staying with her after 20 December 2019. The most appropriate care period would therefore be the 12-month period from 20 December 2019 to 19 December 2020.

3. Ms Ketchum provided copies of her diary, covering the period 1 October 2019 to 2 August 2020. It indicates that in that period of 307 days, [Child 1] stayed at Mr Monsell’s home 48 nights or 15% of the time. [Child 1] did not spend any time at Ms Ketchum’s home during that period.

4. At the hearing both parents agreed that [Child 1] spends a lot of time at his friend’s homes or with his grandmother and auntie. Both Ms Ketchum and Mr Monsell agreed that they continue to provide financial and emotional support for [Child 1] to the best of their abilities.

5. I note Mr Monsell is required to pay child support to Ms Ketchum and he stated that he had no problem doing so. He did not agree with Ms Ketchum’s suggestion that neither parent had care for [Child 1] but suggested that they shared the care equally.

6. I accept that both Ms Ketchum and Mr Monsell care for [Child 1] and have his best interest in mind; my role though in this review is to determine whether a care change occurred on or about 20 December 2019, such that Mr Monsell had 100% care of [Child 1] from that date and Ms Ketchum had no care.

7. I have considered Child Support’s policy in regard of care for older children living away from home, as set out in chapter 2.2.1 of the Child Support Guide. It relevantly states:

Older children living away from home

Generally, older children who live independently and separately from their parents or carers provide for many of their own needs. This may include meeting their own ongoing daily needs (such as meal preparation, transport, socialising, etc.) as well as making their own decisions about their daily activities, schooling and health issues. Therefore, it may be difficult to establish whether a person provides care for an older child who lives separately from that person.

Where a person provides substantial financial support to an older child living away from home, the Registrar will generally consider that financial support as an indicator that the person is continuing to provide care for the child. The support can be in relation to daily costs such as food, accommodation and transport, and/or longer term costs such as school fees, paying for airfares home for holidays, clothing, health and dental care, etc.

While financial support is often a key factor in determining whether a person cares for a child who lives away from home, it will not always be the sole determinant. In cases where the financial support provided is limited, and other factors exist that suggest that the person continues to care for the child, the Registrar will consider whether the person is actively involved in major decisions relating to the child. For example, decisions relating to the child's health, schooling, relationships, career, etc. may be indicators that the person continues to provide care for the child.

1. There is no dispute and I accept that [Child 1] has not returned to Ms Ketchum’s home after 20 December 2019, but that he is staying with various people at various times, including staying at Mr Monsell’s home.

2. Based on the parents’ agreement, as stated to me in the hearing, I am persuaded that both Mr Monsell and Ms Ketchum provide substantial financial and emotional support for [Child 1] and that they equally share in his care.

3. On the basis of the evidence before me, I have thus concluded that Mr Monsell has 50% care and Ms Ketchum has 50% care of [Child 1] from 20 December 2019.

4. This is a different conclusion to that reached by the objections officer and I therefore vary the decision accordingly.

DECISION

The decision under review is varied so that Ms Ketchum has 50% and Mr Monsell has 50% care of [Child 1] from 20 December 2019, as notified on 16 April 2020.